Notebook deposits behind the balance sheet: a warning to depositors from the DIA. The court delivered the first conviction for "off-balance sheet deposits. What is an off-balance sheet deposit"

The largest case of creating off-balance sheet deposits last year was Arksbank, which hid 35 billion rubles. depositors' funds. At the same time, the bank reflected only 4 billion rubles in its financial statements. public deposits. Arksbank employed employees of Mosoblbank, which in 2013 became the record holder for off-balance sheet deposits - it hid 76 billion rubles. Last year, this was opened in Rosinterbank, Vneshprombank, Kamsky Horizon, and others, according to the annual report of the DIA. In the first quarter, the agency revealed double-entry bookkeeping in Bulgar Bank and Talmenka Bank for 3.5 billion rubles. And since the beginning of the year - by 5.5 billion rubles.

Last summer, the Central Bank began to massively check banks for the presence of such “notebooks”. The regulator pays special attention to the number of full-time cashiers and operating windows in the branch, to the number of operations on small deposits and correlates it with the bank's working hours, studies the bank's expenses for advertising deposits, and so on.

Yuri Isaev, General Director of the Deposit Insurance Agency

“Responsibility needs to be tightened. Moreover, in such a way that this responsibility is understandable and real not only for bank managers, but also for performers of the middle and lower levels - accountants, tellers - because they, in essence, commit a crime, and then they say that they did it on instructions guides. At the same time, they understand what they are doing, they are not children, they are aware of their own actions.

Now the management of banks that hid deposits can be punished with imprisonment for up to 10 years, Tertychny Agabalyan partner Ivan Tertychny points out. As a rule, ordinary employees in such cases pass as witnesses, he says.

Operators should not suffer from the decisions of management, a bank employee from the top 50 believes. According to him, it would be more reasonable, on the contrary, to create a special hotline and grant immunity to the employee who reported the violation.

“It is difficult to say how the Central Bank's initiative can help fight off-balance sheet deposits,” says Kirill Parfyonov, president of the Club of Bank Accountants. According to him, in order for actions to fall under the Criminal Code, intent must be proven. But any employee will assure that he did not know about the illegality of the actions, says Parfyonov.

Responsibility for ordinary employees cannot be the only solution to the problem of off-balance deposits, the chairman of the board of the bank from the top hundred is sure. But the top manager of a bank from the top 40 is sure that any violations of ordinary employees when working with client funds should provide for liability. Only a single register of depositors, access to which will be open to every client, can help the situation, Parfyonov is categorical. “Together with the DIA and the banking community, we are now working on mechanisms for additional protection of the rights of depositors and the creation of a special information database on deposits that would allow us to take into account and see this problem, control it,” Nabiullina confirmed, while recognizing the insufficiency of this measure.

The Bank of Russia advocates the introduction of criminal penalties for the formation of off-balance sheet deposits, the imitation of securities by depositories, and tougher liability for falsifying reports. Corresponding amendments to the Criminal Code of the Russian Federation are being prepared by the Central Bank and law enforcement agencies

The Central Bank initiates several amendments to the Criminal Code of Russia at once, Aleksey Guznov, director of the legal department of the Bank of Russia, said in an interview with Interfax.

Depositaries and registrars will be discouraged from falsification

The regulator proposes to introduce criminal liability for the registration of non-existent securities, as well as for the provision of statements about their alleged existence, Guznov said. Such acts can be punished with up to six years in prison for the perpetrators. This amendment is supposed to be made to the already existing article of the Criminal Code of the Russian Federation on liability for falsification of financial organizations' statements, which has existed since 2014 and involves imprisonment for up to four years.

In 2010, the scheme with fictitious statements from depositories was used by the banks of Matvey Urin (Slavyansky and Monetny Dom, Trado-bank, Donbank, Uralfinprombank, Sotsgorbank, all of them are deprived of licenses). “If the top management or a shareholder has withdrawn the bank’s assets, then he may try to get an extract from a small depository about non-existent securities in exchange for these assets in order to artificially close the hole,” RBC’s interlocutor from a large depository explains the scheme.

To solve this problem, the Central Bank formed a "white" list of depositories and registrars, and if banks used the services of companies not from this list, the Central Bank required the creation of increased reserves for these securities. However, this measure did not work 100%. According to RBC from a source familiar with the situation, the Central Bank has encountered false statements on securities several more times. “As a result, it was decided to fix the responsibility for this in the Criminal Code,” says RBC’s interlocutor.

“Perhaps, at present, a small number of acts will fall under this composition, since the work of depositories has changed qualitatively. But it is important to put a barrier to the very possibility of misleading investors and the regulator about the presence of securities, ”Guznov explained in an interview.

According to experts, in addition to combating Urin's schemes, the amendment will also solve another problem. According to a source in one of the major depositories, statements about non-existent securities can also be used to increase the share of shareholders at their meeting by adding fake statements to the registers in order to distort the voting results on various management issues.

Bankers will be imprisoned for off-balance sheet deposits

The second amendment under development in the Criminal Code of the Russian Federation is the introduction of a separate article with responsibility for the formation of off-balance sheet deposits - deposits that are not reflected in the bank's statements. For this, bankers are proposed to be imprisoned for up to six years, and if the crime is committed by an organized group - for up to ten years. After the revocation of the license, it is extremely difficult for depositors whose funds were classified as off-balance sheet deposits to obtain insurance for these funds.

The problem of off-balance sheet deposits was discovered in 2014. In Mosoblbank, after the revocation of the license, unaccounted deposits for 76 billion rubles were discovered. Later, such schemes were revealed in Ekaterininsky banks, Miko-bank, Krossinvestbank, Stella-bank, Mostransbank, Arksbank. According to DIA statistics, in 2016-2017, the volume of off-balance sheet deposits in banks with a revoked license amounted to 61 billion rubles, 73 thousand depositors suffered.

At the same time, as Aleksey Guznov explained in an interview, criminal punishment is provided for systematic work to withdraw deposits from the balance sheet, but not for situations related to operational errors. As a result, only the formation of off-balance sheet deposits in excess of 5 million rubles will be criminally punished.

As Alexander Sotov, Head of the Financial Investigation and Anti-Corruption Practice at FBK Legal, notes, in accordance with the notes to Art. 158 of the Criminal Code of the Russian Federation, 1 million rubles is recognized as a particularly large amount. “If we proceed from a formal interpretation, 5 million rubles. — a super-liberal threshold for recognizing the withdrawal of citizens' deposits for balance as a criminal act, ”Sotov believes.

Bank of Russia (Photo: Ekaterina Kuzmina / RBC)

As for the possibility of a bank employee committing an erroneous operation, according to Sotov, any crime, including economic, cannot be committed by mistake. “The formation of off-balance sheet deposits is theft, and a type of this theft is fraud,” says Tatyana Protsenko, managing partner of the Moscow law office Protsenko and Partners. - In my opinion, in criminal proceedings, the simpler the qualification, the better for all participants in the trial. In this case, we are talking about fraud, that is, the implementation of off-balance sheet activities falls under the already existing Art. 159 of the Criminal Code of the Russian Federation, which does not need to be supplemented. In accordance with the Criminal Code, the fact of theft and the method of theft are the signs that make it possible to establish the elements of a crime. Moreover, the introduction of a separate offense related to the formation of off-balance deposits, on the contrary, will cut off other offenses related to embezzlement.”

As practice shows, the criminal prosecution of bankers who take deposits off balance was possible before. However, the sentences were not harsh. At the end of February 2017, the first-ever verdict was passed in Russia on the so-called off-balance sheet deposits, RBC. Five top managers of Dig-Bank, who did not reflect depositors' money on the bank's balance sheet, received suspended sentences and fines of up to 500,000 rubles. Dig Bank's license was revoked in the summer of 2014. During the proceedings, it turned out that almost two thousand customers of the bank could not receive payments. The damage amounted to 800 million rubles. “The existing modern tools of the Criminal Code and the Code of Criminal Procedure provide all the necessary grounds for bringing to responsibility. The problem lies not in the absence of some corpus delicti, but in the insufficient qualification of personnel who can use this toolkit, ”Sotov sums up.

The Central Bank calls on the police to help

The third innovation concerns the improvement of the operation of the existing article of the Criminal Code of the Russian Federation for falsifying financial statements.

Now the Bank of Russia can send materials to law enforcement agencies only after the bank fails to comply with the instructions of the Central Bank to adjust reporting. It is proposed to send information to the security forces without a corresponding order. The fact is that if the bank fulfills the order and corrects the reporting, its employees who are guilty of the initial falsification will not be subject to criminal liability. “Why give them such an opportunity if the crime was nevertheless committed?” — explained the source of RBC.

“In the event that the Central Bank ceases to make demands on banks to eliminate unreliability in reporting, this will to some extent facilitate the evasion of liability by financial organizations and shift part of it onto the regulator, that is, the investigation will have to deal with the bank’s reporting,” Tatyana Protsenko believes.

Also, according to Guznov, it is proposed to give the opportunity to initiate criminal cases under Art. 172.1 of the Criminal Code of the Russian Federation (falsification of financial documents of accounting and reporting of a financial organization) not only by the Central Bank, as it is now, but also by the police. “This is the only article of the Criminal Code, according to which a criminal case can be initiated only on the basis of the materials of the Central Bank, in other cases, an exhaustive list of grounds for initiating a criminal case, contained in Art. 140 of the Code of Criminal Procedure of the Russian Federation (reasons and grounds for initiating a criminal case),” says Sotov.

However, this measure is not so much practical as intimidating, experts say. “Most likely, the Central Bank will continue to initiate such cases on its own, but from the point of view of general control over the situation, the existence of such an article would be correct,” the RBC source believes. In addition, regardless of who initiates the initiation of a criminal case, it is necessary to conduct a pre-investigation check, during which it is impossible to establish the fact of a crime without the Central Bank, Protsenko points out.

Unscrupulous bankers will be punished from all sides

Reporting falsification has long been one of the significant problems of the banking sector. The Bank of Russia is trying to eliminate cases of falsification from different fronts. So, after the revocation of the license from Vneshprombank at the beginning of 2016, the hole in the balance of which amounted to 210 billion rubles, the Central Bank criticized the work of auditors. The head of the Central Bank, Elvira Nabiullina, said that about 50 audit companies unconditionally certified the statements of 150 banks, where later the regulator found signs of unreliability.

As a result, the Central Bank proposed amendments to the law “On Auditing” as part of the transfer to the Bank of Russia of powers to supervise a significant part of this market.

Depositors of three banks that have lost their licenses - Tatarstan's Kamsky Horizon, Altai's Talmenka-Bank and Yaroslavl's Bulgar Bank - are asking the Bank of Russia and the competent authorities to develop amendments to banking, administrative and criminal legislation aimed at solving the problem of "off-balance sheet" depositors. We are talking about clients of banks with a revoked license, whose deposit data turned out to be completely or partially not reflected in the bank's accounting records, including as a result of fraud by its former management, and who, because of this, cannot receive insurance compensation.

According to Banki.ru, to date, about 3 thousand clients of Kamsky Horizon, Bulgar Bank and Talmenka have faced such a problem (the license from these banks was revoked on November 3, 2016, January 16 and January 23, 2017, respectively) . The point is that based on the data accounting the provisional administration forms registers of the bank's obligations to depositors, which the Deposit Insurance Agency is guided by when deciding on the payment of compensation. For those who are not listed in the registers, the DIA refuses to pay.

At the same time, although the agency admits that the former management of banks could conduct double-entry bookkeeping, it refuses to enter "off-balance sheet" depositors into the register on the basis of the copies of primary accounting documents they have in their hands - deposit opening agreements, receipts for incoming cash orders, extracts from settlement accounts. The DIA fears that the documents can be forged and demands to prove their authenticity in court. Investors do not share the DIA's position.

Savers against the system

On April 9, a rally of the initiative group of depositors of Kamsky Horizon, Bulgar Bank and Talmenka took place in Moscow. As a result, 232 meeting participants signed a resolution (available at Banki.ru), in which, in particular, they asked the Central Bank to create a system on the regulator's website that allows checking the availability of information about deposits for any date in the accounting and automated banking system of banks, as well as use information about deposits printed from the official website of the Central Bank as evidence for receiving insurance payments in the DIA and in court. In fact, we are talking about creating a single register of deposits on the website of the Central Bank, the coordinator of activists Artur Ghukasyan explained to Banki.ru.

Activists also ask the Central Bank to establish a procedure for making changes to the register of bank obligations to depositors and determining the validity of the depositor's claims based on the original primary documents, as well as printouts from the Central Bank's website, and to oblige the temporary administrations of banks and the DIA to amend the registers of obligations out of court. They also ask the regulator to develop and publish a normative legal act that establishes the procedure for amending the register of bank obligations to depositors based on the original documents of depositors.

Among other requirements, the toughening of criminal liability for fraud in the banking sector committed by the management and / or owners of the bank, which caused especially large damage (over 50 million rubles) or damage to many people (over 100 people), toughening of criminal liability for fictitious bankruptcy, as well as the requirement to introduce criminal liability for falsification of financial statements of the bank.

The Bank of Russia considered a simpler procedure for including "off-balance sheet" depositors in the register. In May last year, the first deputy chairman of the Bank of Russia, Alexei Simanovsky, said that "the Central Bank believes that this can be done not through the courts, but by providing all the necessary documents confirming the opening of the deposit." Chairman of the Central Bank Elvira Nabiullina, in turn, noted that the Bank of Russia is considering developing a mechanism that would allow citizens to independently check whether their funds are reflected on the bank's balance sheet. But with regard to the depositors of Kamsky Horizon, Talmenka-Bank and Bulgar, according to Ghukasyan, the situation has not changed yet. At the time of publication of the material, the Bank of Russia did not respond to Banki.ru's request.

The activists intend to send the resolution to Nabiullina, head of the DIA Yuri Isaev, Prosecutor General Yuri Chaika and other institutions.

Courts and registers

At the request of Banki.ru, four lawyers got acquainted with the demands of depositors, set out in the resolution following the meeting. In general, they support the creation of a system on the Central Bank website that would allow depositors to track data on their deposits.

According to the lawyer of a large retail bank, in theory, such a system will eliminate the future risks of DIA refusals to pay compensation when revoking licenses from banks and protect the interests of depositors who will be able to verify online that their deposit is really opened in the bank and is subject to state insurance guarantees. “If such a system appears, it will make life easier for everyone. A document from such a "registry" will be sufficient to satisfy the requirements - it will have legal force. I think that after the creation of such a system, there will be no litigation in principle,” Farid Babaev, adviser to the A2 law firm, notes. The creation of such a register is also supported by Dmitry Shevchenko, a partner at the Zamoskvorechye Law Office.

But according to Babaev and a retail bank lawyer, there are drawbacks to such a system. “During the life of the deposit, the account balance can change upwards due to accrued interest and replenishment, and also decrease, for example, due to partial issuance of funds. Therefore, the amount of the deposit indicated in the original contract kept by the depositor may differ both upwards and downwards. Consequently, dishonest bankers, as before, will have the opportunity to falsify the balances on depositors' accounts, but already online, and unscrupulous depositors, after withdrawing a part or the full amount of the deposit, will be able to demand from the DIA the return of the entire deposit amount on the basis of the primary agreement,” - explains the lawyer of the retail bank.

Another problem is the significant financial costs of creating such a system. “This includes the creation of an online platform and the establishment of an electronic document flow between all participants in the process to provide the necessary information. Unfortunately, this measure will not be able to fully protect depositors,” the interlocutor of Banki.ru believes. His point of view is shared by Babaev and believes that due to the serious financial costs at the moment, "creating such a base is unrealistic."

Ilya Fedotov, a partner at the law firm Orient Partners, in turn, supports the demands of depositors to investigate thefts in the relevant banks, as well as to tighten the Central Bank's control over the activities of banks accepting deposits from individuals. “At the same time, in our opinion, without a certain political decision, depositors' claims on off-balance deposits are unlikely to be fully repaid,” he said.

Judicial Dilemma

A2's adviser Farid Babayev shares the DIA's position that the authenticity of off-balance sheet depositors' documents should be confirmed in court. In his opinion, if the DIA pays out-of-court compensation to such clients, it will take on the risks of unscrupulous depositors appearing, and there are such risks, and the flow of unscrupulous depositors may increase.

“Litigation involves the examination of signatures, seals and other things. As part of the work of the DIA, all this (verifying the authenticity of documents) will be very difficult and, in principle, unrealistic. Such a path will seriously increase the procedural burden on the DIA, while the DIA already has a large amount of work. To date, the court - the best option. And the possible outcome of such proceedings depends on the quality of the work of lawyers who represent the interests of depositors,” says Babaev.

Denis Kovalev, senior lawyer at YurPartner, also believes that if the DIA refuses to pay, depositors should go to court. “The problems of “off-balance” depositors are most often created precisely because of the lack of primary documents, if these documents are replaced by an agreement on transferring money to a bank. That is, in fact, when transferring money, the deposit is not made, and the client most often knows about it or takes risks either in order to obtain the promised profit higher than the return on the deposit that is promised to him in the bank, or simply without realizing it. But in this situation, we are talking, most likely, about the fact that "off-balance sheet" depositors simply do not have primary documents, but there are some documents on the transfer of money to the bank, because if they had primary documents, they would apply if the DIA refused to court, and would not threaten him with the spread of the “terrible truth” in the press,” he shared his opinion.

As Artur Ghukasyan, coordinator of the rally and Kamsky Horizon depositor, told Banki.ru, 779 people have off-balance deposits in the bank, more than 1,000 in Bulgar, and the same number in Talmenka. In total - about 3 thousand people. (The DIA failed to obtain more accurate figures on the number of depositors who applied to the court.)

A similar figure was mentioned by the deputy head of the DIA, Yuri Isaev, in an interview with Russia 24 TV channel on March 23. “When this (database) is destroyed, we have no choice but to send depositors to court. There are not many of them, out of 100,000, say, who have been deceived by fraudulent schemes in recent years, now there are about 3,000 citizens who, apparently, will be forced to go to court. This is also a lot. You need to understand that a depositor, coming to a bank that lures him to an iPad, takes him on an excursion, is plotting something, ”he said.

Investors are skeptical about the court. According to Ghukasyan, many of Kamsky Horizon's contributors are pensioners who cannot afford to pay state fees and lawyers, while the lawsuit could drag on indefinitely. “They live on a pension. The money they kept in banks is savings,” the activist explains.

At the moment, activists report about 70 claims demanding insurance payments, which are being considered in various district courts in Moscow.

Ekaterina MARHULIYA, Banki.ru

A photo: frame from the movie "Mask"

With this material, we open a series of publications-instructions that will help you solve everyday problems. financial questions. Let's start with a pressing topic - how not to become a notebook contributor? Konstantin Levushkin, deputy chairman of the board of Neiva Bank, helped us to sort out the issue. Well, so that it would not be so hard for you to read such an important instruction, we provided each tip with an incendiary gif with Jim Carrey. Don't ask why, just enjoy!

BRIEFLY ABOUT THE PROBLEM

What is a "notebook" deposit?

The DIA makes insurance payments on the basis of the Bank's Liabilities Register. This document is drawn up after the license is revoked on the basis of financial statements. credit institution. It contains information about the size and conditions of deposits, as well as about the depositors themselves. AT recent times the Agency is increasingly faced with the fact that depositors come for payments, which were not reflected in the bank's official statements. Such deposits that are not reflected on the balance sheet of the bank are called “notebook deposits”. For the first time, large volumes of hidden deposits were discovered during the reorganization of Mosoblbank in 2014. More than 70% of depositors' funds turned out to be out of balance.

1. Nobody is immune. Unless Sberbank clients will never get into such a situation. But! Never say never. So read on for tips.

2. Ask for a contract and read it carefully. The document should state that you open a deposit - once, in a bank - twice. It should not be a fund management agreement, not a funded insurance agreement, not a savings certificate, but a deposit. The bank must be indicated as the second party, and not the insurance company of the same name, management company, NPF or something like that. Banks today have the opportunity, under an agency scheme, to offer various savings instruments in their office and (this is legal), but the safety of money is far from being guaranteed by the state for all instruments, as well as for a deposit. Reading a contract can be difficult and lengthy. But you have to.

3. Keep documents: agreement on opening a deposit and checks when replenishing it. Well, true. Do you yourself believe that you will come to the DIA, just say that you had a deposit of "one hundred" thousand rubles, and everything will be returned to you on demand? The deposit opening document and cash receipts are documentary evidence that you were a real client with real money in your account, even if, through the fault of the bank, you ended up in a “notebook” and not in the official register.

4. Use internet banking and mobile app. Firstly, this way you can always check how much money is in your deposit. Secondly, the operational reflection of income and expenditure transactions is an indirect confirmation that your contribution is not a notebook. You can even make several test operations immediately after opening a deposit. But remember that even if everything is normal with the reflection of transactions online, this does not give a 100% guarantee not to get into the “notebook”.

5. Take screenshots and keep statements if you have an online deposit. Let's say you are an advanced depositor and opened a deposit through the Internet bank, in this case you do not have any documents on hand. But you can take a screenshot and send yourself a deposit statement by e-mail. It is better to make statements periodically, because as soon as the bank closes, its online services will also close: there will be no access to information about the status of your accounts. Better to be safe.

6. Choose your bank wisely. Bankers have been repeating this mantra, it seems, since the beginning of time, but things are still there. It is better to think seven times before taking money to a bank that promises cosmic deposit rates (for example, more than 10% per annum with maximum rate top ten players

Sergei Starchikov deposited 1 million rubles in Talmenka-Bank. After the license was revoked from the bank, Sergei was denied the return of the insured money. How to act in such situations?

Sergey says that he chose the option bank deposit, based on the value of interest rates and the convenience of the location of the office. I found a suitable deposit with a yield of more than 10% per annum in Talmenka Bank, whose office was in Moscow City. Sergei invested more than 1 million rubles. During checkout, he did not notice anything suspicious. The bank had an official license, the amount of the deposit was less than 1.4 million rubles, so Sergey was sure that his funds were insured.

Starchikov learned about the revocation of the license from the bank on his own, on the DIA website. Nobody from the bank called him. At the same time, he was completely calm, because he expected that all the money invested would be returned to the agent bank. Sergei got worried when he did not find himself in the register of depositors on the DIA website. He turned to the agent bank, but they refused precisely because of his absence in the register. The bank offered to write a corresponding application, and then proceedings began. Letters were sent to Sergey and other depositors stating that due to the fraudulent actions of Talmenok-Bank, the return of the invested funds was impossible. At the same time, it turned out that the database of bank depositors was destroyed.

Sergey has in his hands all the documents confirming the opening of the deposit: an agreement, a cash receipt order and even confirmation of receipt of gifts from the bank for opening a deposit. A group of depositors deceived by the bank wrote letters to the Central Bank and the Deposit Insurance Agency. Sergei says that it is somehow strange to prove in court that he is a depositor. What to prove if you have all the documents on hand? However, some depositors went to court, where they were denied. And what to do in such a situation?

Stanislav Kaplan, CEO of Pravocard, answers.

In case of refusal to return the money, it is better for the depositor to immediately apply to the court. A claim must be filed with the DIA, demanding to establish the composition and amount of requirements for the deposit, as well as to pay compensation for the deposit.

The applicant will be required to submit to the court an agreement on opening a deposit and cash receipts proving the fact of making Money on account.

According to established legal practice, in fact, the DIA is interested in making final decisions on controversial issues by the court. All complaints and appeals received by the DIA are refused by the Agency with excuses that the applicant has the right to go to court. Therefore, writing a complaint to the DIA only wastes time. The Agency's lawyers themselves admit that, according to the directives they have received, they must refuse the applicant at the slightest doubt. However, if the court decides in favor of the plaintiff, DIA lawyers will not dispute anything.

If the process is not delayed by the second party (which usually happens with the DIA), the court will make a decision in about 2 months. If the court refuses, the depositor has the right to appeal to higher authorities, up to Supreme Court. An alternative option is to file a claim with the bank, demanding that the applicant be included in the register of recoverers.